arrest without warrant
TRANSCRIPT
JAIPUR NATIONAL UNIVERSITY
SEEDLING SCHOOL OF LAW AND GOVERNANCE
Project on
Arrest without warrant
Submitted to: Mr. D. P. Poonia Submitted By: Akash Shrivastava
B.A. LL.B
V Semester
What is the definition of an Arrest?
There are four components involved:
a) a seizure or touching of a person’s body
b) followed by words such as "you are under arrest"
c) the person’s submission to the compulsion and
d) The police informing the person of the true grounds for his arrest.
To affect an arrest, a police must simply make clear to a person by what is said
and done that he is no longer a free man. There is no fixed formula when it comes
to arresting a person but the arresting officer may have to use different procedures
with different persons, depending on their age, ethnic origin, knowledge of
English, intellectual qualities and physical or mental disabilities.
For example: The arrest by a constable of a totally deaf person who could not
lip-read would be valid if the constable had done everything that a reasonable
person would do in the circumstances. An arrest constitutes an absolute restriction
on a person’s freedom of movement. Hence every citizen has a fundamental right
to know when he is under arrest. Therefore, in order to avoid any doubt, as far as
possible, the word "arrest" should be used by the arresting constable before he
restricts your freedom.
The Constitution and laws guarantee a number of rights to citizens, even when
they are arrested in criminal cases. It is important for you to know the
circumstances under which you can be arrested and what your rights during and
after arrest are.
Who can make an Arrest?
A police officer may arrest a person either with or without a warrant
depending on the nature and gravity of the offence.
Even a private person can arrest another person who in his presence commits
a non-bailable, cognizable offence or is a proclaimed offender and then hand
him over to the police. —(Sec 43, Cr.P.C.)
Who can be arrested without a warrant by the police?
Any person who:
has been involved in a cognizable offence or is suspected to be so involved
or against whom a complaint has been received of such involvement;
possesses any implement of housebreaking without valid excuse;
has been declared a proclaimed offender under law;
is in possession of stolen property;
obstructs a police officer in carrying out his/her duty;
has escaped or attempts to escape from lawful custody;
is suspected of being a deserter from any of the Armed Forces; and
is a suspect or a habitual offender and needs to be bound down for good
behaviour.
Arrest and Detention- Your Rights and Police Duties Every
arrested person has a right:
to be informed of the grounds of arrest by the police. The police should also
inform the arrested person of this right. —(Art. 22 (1), Constitution; Sec. 50,
Cr.P.C.)
to be released on bail when arrested for a bailable offence. It is the duty of
the police officer to inform him of his right to be released on bail. —(Sec.
50, Cr.P.C)
to be produced before the nearest c o m p e t e n t m a g i s t r a t e within 24
hours from the time of his arrest. This period excludes the time taken in
journey. —(Art.22(2), Constitution Sec; 57& 76, Cr. P.C)
to inform his relative or friend about his arrest and the place of detention. It
is the duty of the police to inform the arrested person of this right and also
inform his relatives or friend about his arrest and detention. —(S.C.
judgement D.K.Basu v.
State of West Bengal)
to meet and consult a lawyer of his choice. The arrested person can consult a
lawyer during interrogation also but not throughout the interrogation period.
—(Art.22(1), Constitution; S.C. judgement D.K.Basu v. State of West
Bengal)
not to be ill-treated, abused or tortured while in custody during interrogation
and investigation.
not to be subjected to more restraint than what is necessary to prevent his
escape.
—(Sec.49, Cr.P.C)
A police officer making an arrest is entitled to search the arrested person and
place
in safe custody all the articles seized from him. A receipt of such articles
must
be given to the arrested person. —(Sec.51, Cr.P.C)
Right to Medical Examination
Every accused person can demand a medical examination of his body by a
registered medical practitioner to disprove the commission of the offence
alleged against him. It is the duty of the Magistrate to inform him of this
right. —(Sec.54, Cr.P.C)
At the time of examination, the injuries found on the body should be
recorded. It is necessary to prepare an Inspection Memo after the
examination is over and this Memo should be signed by the arrested person
and the police officer making the arrest. —(S.C. judgement D.K.Basu v.
State of West Bengal)
Every arrested person has the right to be medically examined after every 48
hours during his detention in custody by a qualified and government-
approved doctor. —(S.C. judgement D.K.Basu v. State of West Bengal)
Additional Duties of the Police
—(S.C. judgement D.K.Basu v. State of West Bengal)
The police officer carrying out the arrest must bear accurate, visible and
clear identification in the form of nametag with designation.
The police must r ecord in a register the identity of all police officials who
conduct the interrogation of the arrested person.
The police officer carrying out the arrest must prepare a Memo of Arrest that
should be signed either by a relative or friend of the arrested person or a
respectable person of the locality and be countersigned by the arrested
person. This Memo must have the date and time of arrest.
Copies of all the documents should be sent to the local area Magistrate for
record.
Details of every arrest and the place of detention of the arrested persons
should be given to the State and District Police Control Room within 12
hours of the arrest. This information should be displayed clearly on the
notice board of the Control Room.
The police officer making the arrest should not hand cuff any person
routinely. The arrested person should not be handcuffed except where,
- there is a clear danger of his escape or attempt to escape;
- he is so violent that he cannot be kept in custody unless his movement
is stopped.
Special Rights of Women
Females can be searched by only another female with strict regard to privacy
and decency. —(Sec.51, Cr.P.C)
Female suspects must be kept in a separate lock-up in the police station.
They should not be kept where male suspects are detained. —(S.C.
judgement Sheela Barse v. State of Maharashtra)
When a female is arrested for a non-bailable offence, even if the offence is
very serious (punishable by death penalty even), the court can release her on
bail. —(Sec.437, Cr. P.C)
Right to Legal Aid and Advice
Every poor accused is entitled to be provided with free legal aid.
This right begins from the time of his arrest only. If he is not aware
of this right it is the duty of the Magistrate to inform him about this
right when he is first produced in court. —(S.C. judgement Khatri
&Others v. State of Bihar and others).
It is the duty of the police to immediately inform the nearest legal
aid committee about the arrest of an accused seeking legal aid. —
(S.C. judgement Sheela Barse v. State of Maharashtra)
Resistance to Arrest
Never resist arrest forcibly.
The police officer or other person making the arrest is empowered to use all
means necessary to effect arrest, including use of force. —(Sec. 46. Cr.P.C).
Do not refuse to give your name and address or give false name or address to
the police. You can be arrested by the police officer for doing so. —(Sec.42.
Cr.P.C).
Redress against arbitrary arrest and detention:
If any person has been arrested and detained illegally or wishes to make a
complaint against any wrongful act by the police, he can complain to the:
Superintendent of Police of that district and other senior police officers;
court; and
State Human Rights Commission/ National Human Rights Commission
Arrest by Warrant
Persons are seldom arrested by warrants these days. This is because of the
statutory enlargements of the power to arrest without warrant. There are however
two instances in which arrest by warrant occurs :
1. where there is an "all-points alert" or "all-points bulletin" for some
identified major offender who is wanted for some offence committed locally
or interstate
2. where a police officer is not immediately under pressure to make an arrest
and has time to obtain a warrant to ensure that the arrest will not be held to
be unlawful.
Arrest without Warrant
At Indian law, a private person’s powers of arrest without warrant are extremely
limited. A private person may arrest a person who has committed treason or
felony or whom he reasonably suspects of having committed treason or felony. A
police officer’s powers of arrest at common law are only slightly wider than those
of a private person. An arrest able offence means an offence punishable with
imprisonment, with or without any other punishment.
Force in Arrest
Sometimes a person to be arrested may resist arrest. The force that can be
lawfully used in effecting an arrest depends upon whether it is a "confrontation"
arrest involving direct physical resistance, or a "fugitive" arrest involving flight.
The common law provides that in a "confrontation" arrest situation, the arresting
officer can use an amount of force reasonably necessary to effect the arrest.
Hence, the degree of force permissible will vary according to the degree of
resistance to the arrest.
The common law applicable to "fugitive" arrest in cases of a person seeking to
avoid an arrest for eg. The crime of treason, the arresting officer may be justified
in killing the fugitive if he cannot be arrested in any other way.
A police officer may lawfully cause grievous bodily harm to a person fleeing to
avoid arrest where:
a) the person to be arrested may be arrested without warrant
b) the person to be arrested is reasonably suspected of having committed an
offence punishable by death or life imprisonment
c) the person to be arrested has been called upon to surrender.
After being arrested
After the arrest, a person may be searched. The search may extend to a medical
examination of an arrested person.
It may also include fingerprinting or photographing or DNA profiling.
An arrested person has the right to remain silent when interviewed by the police.
This right to silence cannot be adversely commented on by the prosecution
lawyers during the trial. Of course, during questioning, if for example, the
arrested person has an alibi, the sooner it is disclosed to the arresting officer, the
earlier the arresting officer will have the opportunity to make the necessary
enquiries to verify it.
A person arrested without warrant must be brought before a justice as
soon as practicable after he is taken into custody. Where it is not practicable to do
so within 24 hours, the arrested person must be brought before a clerk of petty
sessions, inspector or sub-inspector of police, or a police officer in charge of a
police station. These persons must enquire into the case and grant bail, except
where the offence appears to be of a "serious" nature.
Practical Matters to Consider
Very often, a person who is arrested is faced with the following questions:
1. Should I make a statement to the police? Statements to the police are
usually made by way of a video tape interview or a signed statement. OR
2. Should I maintain my right not to say anything.
Different lawyers handle those questions differently.
For example, it could be argued that if you are innocent, the sooner you give the
required information to the Police, the sooner they will see that you have not
committed a crime and therefore release you or not proceed to charge you. That
could sometimes save you time and legal fees.
However, there are some lawyers
who believe that nothing should be stated to the police if you are arrested. That
will ensure that nothing incriminating (no matter how innocent) is given to the
police. By doing that, you get the police to prove their case against you and do
not assist them to implicate yourself.
No one can tell you which is the better
stance to take. Sometimes it can be said that if you make a statement
immediately, you put your story across and it is more credible as it cannot be said
that you have had time to fabricate a story to cover up. However, the down side is
that you may say something that may implicate you in a crime. Therefore the best
course of action is to ask to see a solicitor immediately before making a statement
to the police.
The emerging trends in the criminal justice system emphasize the need to speedy
trail. Since our Constitution envisaged the spirit of fundamental rights to its
citizens the Right of life and personal liberty
Article 21 of the Indian constitution read as
“No person shall be deprived of his life or personal except according to procedure
established by law”. However in spite of the constitutional and statutory provisions
are aimed at safe guarding the personal liberty and life of a citizen, growing
incidents of torture and deaths in police custody has been a disturbing factor.
Experience shows that worst violations of human rights take place during the
course of investigation….custodial death in perhaps one of the worst crime in a
civilized society governed by the rule of law”1
Speedy trial thus an integral and
essential part of the fundamental right to life and personal liberty enshrined in
Article 21 of the Constitution.2 In Kadra Pahadiya Vs. state of Bihar3 it was held
that several trials were languishing in jail for several years without their trial
having made any progress. The Supreme court commented “it is a crying shame
upon our adjudicatory system which keeps men in jail for years an end without a
trial.
In this context it is obvious to know about arrest and its scope in the code of
criminal procedure.
1AIR 1997 SC 610 (D.K.Basu’s case)2 AIR SC 1675 (State of M.H. Vs. Champalal)3 AIR 1981 SC 939
“Arrest” means the apprehension of a person suspected of criminal
activities”4
When a person is found to be committed an offence under I.P.C or ant other law
for the time being in force, be arrested by the police officer and a Magistrate as
according to the following provisos
ARREST UNDER THE CRIMINAL PROCEDURE CODE :
1. Arrest by the magistrate (sections 44, 87, 89,204,319 and 187) of) cr.p.c.
2. Arrest by police officer(sections 41, 42 and 151)
3. Arrest by the private person (section 43)
According to the provisions of the Criminal Procedure Code a person who is
found to be committed an offence may be arrested as mentioned infra:
1. Arrest by the magistrate:
A Magistrate may arrest under the following circumstances,
Section. 44: (1) When any offence is committed in the presence of a Magistrate,
whether Executive or Judicial, within his local jurisdiction, he may himself arrest
or order any person to arrest the offender, and may thereupon, subject to the
provisions herein contained as to bail, commit the offender to custody.
(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct
the arrest, in his presence, within his local jurisdiction, of any person for whose
arrest he is competent at the time and in the circumstances to issue a warrant.
4 Oxford Dictionary of Law (3rd Edtn)
Section. 87: A Magistrate is empowered by this code to issue a warrant of arrest
for appearance of any person after recording the reasons in writing.
“A court may, in any case in which it is empowered by this Code to issue a
summons for the appearance of any person, issue, after recording its reasons in
writing, a warrant for his arrest-
(a) If either before the issue of summons, or after the issue of the same but before
time fixed for his appearance, the court sees reason to believe that he has
absconded or will not obey the summons; or
(b) If, at such time he fails to appear and the summons is proved to have been duly
served in time to admit of his appearing in accordance therewith and no reasonable
excuse is offered for such failure.”
Section. 89: A Magistrate is empowered to issue a warrant of arrest against who is
bound by any bond taken under this code for his appearance.
“When any person who is bound by any bond taken under this Code to appear
before a Court, does not appear, the officer presiding in such Court may issue a
warrant directing that such person be arrested and produced before him.”
It s to be noted that under sections 87 and 89 the warrant issued by the Magistrate
not only against the accused but also any person who disobey the order by the
court.
Section. 204: The Magistrate taking cognizance of an offence thinks fit that there
is sufficient ground for proceedings and the case appears to be a warrant case, he
may issue a warrant against the accused. However it is to be noted that the
discretion of Magistrate is essential in issuing warrant.
Section 204 -Issue of process-
1) If in the opinion of a Magistrate taking cognizance of an offence there is
sufficient ground for proceeding, and the case appears to be -
a) a summons-case, he shall issue his summons for the attendance of the
accused, or
b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons,
for causing the accused to be brought or to appear at a certain time
before such Magistrate or (if he has no jurisdiction himself) some
other Magistrate having jurisdiction.
2) No summons or warrant shall be issued against the accused under sub-
section (1) until a list of the prosecution witnesses has been filed.
3) In a proceeding instituted upon a complaint made in writing, every summons
or warrant issued under sub-section (1) shall be accompanied by a copy of
such complaint.
4) When by any law for the time being in force any process-fees or other fees
are payable, no process shall be issued until the fees are paid and, if such
fees are not paid within a reasonable time, the Magistrate may dismiss the
complaint.
5) Nothing in this section shall be deemed to affect the provisions of section
87.
Section. 319: As per section 319(2) the Magistrate is empowered to issue arrest
warrant against a person appearing to be guilty of offence as the circumstances of
the case may require him to do so.
319. Power to proceed against other persons appearing to be guilty of
offence:-
1) Where, in the course of any inquiry into, or trial of an offence, it appears
from the evidence that any person not being the accused has committed any
offence for which such person could be tried together with the accused, the
Court may proceed against such person for the offence which he appears to
have committed.
2) Where such person is not attending the Court, he may be arrested or
summoned, as the circumstances of the case may require, for the purpose
aforesaid.
3) Any person attending the Court, although not under arrest or upon a
summons, may be detained by such Court for the purpose of the inquiry into,
or trial or, the offence which he appears to have committed.
4) Where the Court proceeds against any person under sub-section (1), then-
a. the proceedings in respect of such person shall be commenced afresh,
and the witnesses reheard;
b. Subject to the provisions of clause (a), the case may proceed as if such
person had been an accused person when the Court took cognizance
of the offence upon which the inquiry or trial was commenced.
2. Arrest by police officer:
The power of police officer to arrest is of two fold, former entitles him to
arrest without acting under discretion and the latter puts him into the discretion in
arresting the offender a per the amended proviso in the CR.P.C.
Without warrant : (without using discretionary power)
Section 41 (1) (a) : The police officer may arrest any person who commits in his
presence a cognizable offence.
“Section 41.When police may arrest without warrant.-
1) Any police officer may without an order from a Magistrate and without a
warrant, arrest any person-
a) who has been concerned in any cognizable offence, or against whom a
reasonable complaint has been made, or credible information has been
received, or a reasonable suspicion exists, of his having been so
concerned;”
Section 41(1) (b) : The police officer may arrest any person who commits any
cognizable offence punishable with an imprisonment of a period more than 7
years.5
“Section 41.When police may arrest without warrant.-
1) Any police officer may without an order from a Magistrate and without a
warrant, arrest any person-
5 The code of Criminal Procedure (Amenment) act 2008.
b. who has in his possession without lawful excuse, the burden of proving
which excuse shall lie on such person, any implement of house-
breaking;”
Section 41(1)(c to i) : The police officer may arrest without warrant under the
circumstances mention in sub clauses c to i.
“Section 41.When police may arrest without warrant.-
1) Any police officer may without an order from a Magistrate and without a
warrant, arrest any person-
c. who has been proclaimed as an offender either under this Code or by
order of the State Government; or
d. in whose possession anything is found which may reasonably be
suspected to be stolen property and who may reasonably be suspected
of having committed an offence with reference to such thing; or
e. who obstructs a police officer while in the execution of his duty, or
who has escaped, or attempts to escape, from lawful custody; or
f. who is reasonably suspected of being a deserter from any of the
Armed Forces of the Union; or
g. who has been concerned in, or against whom a reasonable complaint
has been made, or credible information has been received, or a
reasonable suspicion exists, of his having been concerned in, any act
committed at any place out of India which, if committed in India,
would have been punishable as an offence, and for which he is, under
any law relating to extradition, or otherwise, liable to be apprehended
or detained in custody in India; or
h. who, being a released convict, commits a breach of any rule made
under sub-section (5) of section 356; or
i. for whose arrest any requisition, whether written or oral, has been
received from another police officer, provided that the requisition
specifies the person to be arrested and the offence or other cause for
which the arrest is to be made and it appears there from that the
person might lawfully be arrested without a warrant by the officer
who issued the requisition.”
Section 42 : The police officer may arrest a person who commit in his presence a
non cognizable offence and refuses to give his name and address.
42.Arrest on refusal to give name and residence.-
1) When any person who, in the presence of a police officer, has committed or
has been accused of committing a non-cognizable offence refuses, on
demand of such officer, to give his name and residence or gives a name or
residence which such officer has reason to believe to be false, he may be
arrested by such officer in order that his name or residence may be
ascertained.
2) When the true name and residence of such person have been ascertained, he
shall be released on his executing a bond, with or without sureties, to appear
before a Magistrate if so required:
Provided that, if such person is not resident in India, the bond shall be
secured by a surety or sureties resident in India.
3) Should the true name and residence of such person not be ascertained within
twenty four hours from the time of arrest or should he fail to execute the
bond, or, if so required, to furnish sufficient sureties, he shall forthwith be
forwarded to the nearest Magistrate having jurisdiction.
Section 151 :A police officer knowing of a design to commit any cognizable
offence may arrest without the orders/ warrant from a Magistrate as a preventive
action to maintain law and order .
“151. Arrest to prevent the commission of cognizable offences.-
(1) A police officer knowing of a design to commit any cognizable offence may
arrest, without orders from a Magistrate and without a warrant, the person
so designing, if it appears to such officer that the commission of the offence
cannot be otherwise prevented.
(2) No person arrested under sub-section (1) shall be detained in custody for a
period exceeding twenty-four hours from the time of his arrest unless his
further detention is required or authorised under any other provisions of this
Code or of any other law for the time being in force.”
Without warrant (with discretionary power)
Section 41 (1) (b): The police officer may arrest any person under this section
like wise as in the old code section 41 (a) but after fulfilling the grounds mentioned
in Clauses (i) and (ii) for arrest and recording in writing about the necessity of
arrest in his case diary. As per section 41 (1) (b) (i) for arresting a person it is very
essential for police officer to satisfies about well establishment of guilt and under
as per section 41(b) (ii) before arresting a person under this section the police
officer has to well firmed about necessity of arrest as mentioned in the
circumstances stated under sub clause (a) to (e) to clause (ii).
The new sections brought drastic changes in arrest by the police officer by
vesting the discretionary power.
With warrant by police officer :
Section 41 (2) : The police officer is not entitled to arrest a person who commits a
non cognizable offence or against whom a complaint has been made except with
the warrant of the Magistrate.
On perusing the above amendments it appears that the recognition of need of
arrest in certain cases. The Code of Criminal Procedure (Amendment) Act, 2008
which came in to force on 1st November 2010 vide Notification: S.O.2687 (E) OF
MINISTRY OF HOME AFFAIRS DATED 30TH OCT 2010.This amendment
brought as a result of recommendations made in the 177th Law Commission Report
headed by j. B.R. Jeevan reddy.
The theme of the report is to maintain a balance between the liberty of citizens
(the most precious of all fundamental rights) and the societal interest a difficult
balance but it has to be attempted and achieved to the extent possible. The report
taken in to the consideration of the judgments in the cases mainly D.K.Basu (1997)
and Joginder kumar (1994) and concentrates on the specific theme “the police
officer must be able to justify the arrest apart from his power to do so
“
In Amarabati Vs. State of U.P. [2005 CR.L.J 755 ] it was held that arrest and
detention in the police custody can cause ill-calculable harm to the reputation and
self –esteemed of a person and, that, is why no arrest can be made in routine
manner on minor allegation of commission of a crime
In M.C.Abraham Vs. State of M.H. (2003 SCC 628 Cri.) The lordships held that
Section 41 gives a discretion to the police officer from a magistrate and even
without a warrant may arrest any person in the situation enumerated in that section’
Rights of Arrested person under the Criminal Procedure Code
1) The person arrested shall be informed of the grounds of arrest – Article 22 of
the Constitution and Section 50 CrPc
Section 50 of the Criminal Procedure code
gives a mandatory right to the person arrested. Every Police officer or other
person arresting any person without warrant shall fortwith communicate to him
full particulars of the offence for which he is arrested or other grounds for such
arrest. Where a police officer arrests without warrant any person other a person
accused of a non-bailable offemce. He shall inform the person arrested that he
is entitled to be released on bail and that he may arrange for sureties on his
behalf.
2) In case the person arrested wants that the information about his arrest may be
conveyed to any relation or friend of his, it shall be so conveyed.
3) In case the offence is bailable, he shall be informed that he is entitled for bail
as a matter of right and may even be released on his personal bond - Section
50 CrPc.
4) If he is not released on bail, he must be searched and all articles except
wearing apparel must be placed in safe custody and a receipt should be issued
( section 51)
5) If the arrested person is a women, the search should be done by the woman
6) If the arrested person is in possession of any offensive weapons, they should
be seized and delivered to the Court ( Section 52)
7) According to Section53, the accused may be required to undergo medical
examination by two medical officers ( or two lady doctors in case the accused
is a woman)
8) If the person escapes from custody, the person having custody can pursue and
arrest him any where in India ( Section 60)
9) No person arrested should be detained in police custody for more than 24
hours unless there is a sufficient reason for it ( Section 57), journey period
from the place of arrest to Magistrate’s Court is excluded for the purpose of
computing this period of 24 hours.
10) When an officer in charge of police station instructs his subordinate to
arrest a person without warrant, shall give an order in writing stating the name
and address of the person to be arrested and the offence charged.
11) Every officer incharge of a police station is required to report to the District
Magistrate, the cases of persons arrested with warrant and without warrant.
RIGHTS OF ARRESTED PERSON- PROVISIONS UNDER THE CODE
OF CRIMINAL PROCEDURE
Though the police have been given various powers for facilitating the making of
the arrest, the powers are subject to certain restraints. These restraints are
primarily provided for the protection of the interest of the person to be arrested,
and also the society at large. The imposition of the restraints can be considered,
to an event, as the recognition of the rights of the arrested person. There are,
however some other provisions which have rather more expressly and directly
created important rights to favour of the arrested person. Some of the following
are discussed below-
(a) When police may arrest without warrant: Under sections 41 very wide
powers are conferred on the police in order for them to swiftly act for the
prevention or detect ion of cognizable offences without the formality and delay
of having to go to a Magistrate for the order of arrest. Therefore, the arrest and
detention of persons without warrant of caprice but are governed by rules which
are clearly laid down by law.6 There can be no legal arrest if there is no
information or reasonable suspicion that the person has been involved in a
cognizable offence7 however the burden is on the police officer to satisfy the
court before which the arrest is challenged that he has reaso nable ground of
suspicion.8
(b) Right to know the grounds of arrest- According to section 50(1), “every
police officer or other person arresting any person without a warrant shall
forthwith communicate to him full particulars of the offence for which he is
arrested or other grounds for such arrest.” Apart from the provisions of the code
6 Avinash Madhukar Mukhedkar v. State of Maharashtra, 1983 Cr LJ 1833.7 Raju Mia, 44 CWN 502.8 Emperor v. Vimlabai Deshpande, AIR 1946 PC 123.
recognizing the right to know the ground of arrest, our constitution has also
conferred on this right the status of a fundamental right. Article 22(1) provides,
“No person who is arrested shall be detained in custody without being informed
as soon as may be, of the ground of such arrest nor shall he be denied the right
to consult, and to be defended by a legal practitioner of this choice.”
The rules emerging from decisions such as Joginder Singh v. State of UP9
and D.K Basu v. State of West Bengal10, referred to, have been enacted in
Section 50-A11 making in obligatory to on the part of the police officer not only
to inform the friend or relative of the arrested person about his arrest, etc but
also to make an entry in the register maintained by the police. The magistrate is
also under an obligation to satisfy himself about the compliance of the police in
this regard.
(c) Arrest- how to be made- Section 46 envisages three modes of arrest, i.e.
submission to Custody , touching the body physically, or confining the body.
Arrest is restraint on personal liberty. Unless there is submission to custody, by
words or by conduct, arrest must be made by actual contact.12 In case force is
required, it should be no more than which is justly required and this section does
not give a right to cause death of a person, who is not accused of an offence
punishable with the death or with imprisonment for life13. Accordingly, a police
officer in an attempt to re-arrest an escaped person has no right to shoot.14
(d) No unnecessary restraint- According to section 49, there should be no more
restraint than is justly necessary to prevent escape, i.e. reasonable force may be
9 (1994) 4 SCC 260.
10 (1997) 1 SCC 416.11 Section 50-A enacted by Act 25 of 200512 Thaneil Victor v. State, 1991 Cr LJ 2416 (Mad).13 Sec. 46(3). 14 Dakti, AIR 1955 All 379.
used for the purpose, if necessary; but before keeping a person under any form
of restraint there must be an arrest. Restraint or detention without arrest is
illegal.
(e) Person arrested to be informed of grounds of arrest and of the right to bail-
Section 50 provides that any person arrested without warrant shall immediately
be informed of the grounds of his arrest, and if the arrest is made in a bailable
case the person shall be informed of his right to be released on bail. Arrest
without compliance of this provision will be illegal and will made the officer or
person making such illegal arrest liable to all such remedies as are available in
case of an illegal arrest. Section 50 is mandatory and if its provisions are not
complied with, the non-consideration of such non-conformance by the court
when considering the question of bail operates to the prejudice of the arrested
person and the order is liable to be set aside on this ground. 15 This provision
carries out the mandate of Article 22(1) of the Constitution of India16.
(f) Search of arrested person- Section 51 is the only provision which allows a
police officer to make a personal search of arrested persons, but it comes into
operation after the arrest and not before. Search should be made in the presence
of a respectable and independent witness, but this provision under section 51
does not permit medical examination of the accused without his consent. With
regard to the provisions of this section the reference may be made to article
20(3) of the Constitution which is a guarantee to the accused against testimonial
compulsion. The principle appears to be that though an accused cannot be
compelled to produce any evidence against him, it can be seized under process
of law from the custody or person of the accused by the issue of a search
warrant.
15 Govinda, Pd. 79 CWN 474.16 Govind Prasad v. State of West Bengal, 1975 Cr LJ 1249 (Cal
(g) Person arrested not to be detained more than 24 hours- The constitutional
and legal requirements to produce an arrested person before a Judicial
Magistrate within 24 hours of the arrest must be scrupulously observed.17
Section 57 is concerned solely with the question of the period of detention. The
intention is that the accused should be brought before a magistrate competent to
try or commit, with the least delay. The right to be taken out of police custody
by being brought before a Magistrate is given, firstly, to prevent arrest and
detention with a view to extract confession, or as a means of compelling people
to give information, secondly, to prevent police stations being used as though
they were prisons, and thirdly, to afford an early recourse to a judicial officer
independent of the police on all questions of bail or discharge. 18
(h) Right to consult and to be defended by a counsel of his choice and to get free
legal aid in case of economically disabled accused- Apart from ensuring a fair
prosecution, a society under the Rule of law has also a duty to arrange for the
defence of the accused, if he is too poor to do so. Free legal aid to persons of
limited means is a service which the modern State, in particular a welfare state,
owes to its citizens. 19
(i) Rights to Anticipatory Bail- Section 438 deals with this right of the arrested.
Special powers have been conferred only on the High Court and the Court of
Session for directing a person on bail previous to his arrest, which is commonly
called anticipatory bail, imposing such conditions as the court thinks fit. The
order of anticipatory bail shall take effect at the time of arrest.20
Consequences and liability if the provisions of the right of arrested persons
are violated-
17 Khatri v. State of Bihar, AIR 1983 SC 378.18 Rankin, J., in Md. Suleman, 30 CWN 985 (987) (FB).19 Law Commission of India, 14th Report, Vol. I, pp 587-600.20 Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632.
(1) A trial will not be void simply because the provisions relating to arrest have
not been fully complied with. If the Court has jurisdiction to try an offence, any
illegality or irregularity in arrest will not oust the jurisdiction of the court to try
the offence.21 The question whether the police officer making the arrest was
acting within or beyond his powers in effecting the arrest, does not affect the
question whether the accused person was guilty or not guilty of the offence with
which he is charged. 22
(2) Though the illegality or irregularity in making an arrest would not vitiate the
trial of the arrested person, it would quite material if such person is prosecuted
on the charge of resistance to or escape from lawful custody. 23
(3) If a private person attempts to make an arrest, the person against whom such
attempt is made has every right to protect himself and to exercise his right to
private defence in accordance with the provisions contained in Section 96-106
IPC.24 If the person making an illegal arrest is a police officer or a public
servant, then the right of private defence against such police officer or public
servant will not be as wide as it is against a private person, and would be subject
to the restrictions contained in Section 99 if the IPC.
(4) If a public servant having an authority to make arrests, knowingly exercises
that authority in contravention of law and effects an illegal arrest he can be
prosecuted for an offence under Section 220 of the IPC. Apart from this special
provision, any person who illegally arrests another is punishable under Section
342 IPC, for wrongful confinement.25
21 Mobarak Ali Ahmed v. State of Bombay, AIR 1957 SC 857.22 Subramania Chetty, In re, AIR 1941 Mad 181.23 Sec. 224, 225, 225-B of IPC.24 Kolavennu Venkayya, In re, AIR 1956 AP 156.25 Sharifbai v. Abdul Razak, AIR 1961 Bom 42.
(5) If the arrest is illegal, it is a sort of false imprisonment, and the person
making such arrest exposes himself to a suit for damges in a civil court. 26
It may be mentioned here that the provisions regarding arrest cannot be by-
passed by alleging that there was no arrest but only informal detention. Informal
detention or restraint of any kind by the police is not authorized by law. “It is
intolerable that the police should persue the investigation of crime, by defying
all the provisions of the law for the protection of the liberty of the citizen under
the colorable pretention that no actual arrest has been made when all intents and
purposes, a person has been in their custody.”27
THE RECENT SIGNIFICANT AMENDEMENTS IN THE CODE OF
CRIMINAL PROCEDURE, 1973 RELATING TO THE RIGHTS OF
ARRESTED PERSONS
Law must change with the needs of a changing society, and must in the process
safeguard the interest of innocent as well. With a view to protect the dignity and
liberty of its citizens, Indian Government has made some sweeping changes in
the Powers conferred on Police to arrest an accused. The amendment clearly
lays down conditions which need to be met before a person can be arrested. By
doing so, the government has given credence to the most basic Right of its
citizens – Right to Live with Dignity.
The scope for the definition of victim has been amended so as to include the
victim‟s guardian or legal heir in the definition itself.
26 26 Anowar Hussain v. Ajoy Kumar Mukherjee, AIR 1965 SC 1651.27 Queen v. Basooram Dass, 19 WR 36.
Referring to amendment in Sec.24, now the court may permit the victim to
engage an advocate of his choice to assist the prosecution under this sub-
section.
The proceedings for sexual offences are now required to be held, as far as
practicable by a court presided over by a woman.
Unrestricted and unlimited powers of Arrest so far enjoyed and exercised by
the Police stand restricted and conditioned, both in case of cognizable as
well as non-cognizable offences.
New sections 41A, 41B, 41C have been introduced to provide for detailed
mandatory procedure in matters of arrest under various circumstances and
also to provide for control room in every district, state and police
headquarters, etc. in order to display the names and addresses of persons
arrested along with the details of the person making the arrest. Arrested
person has also been given the Right to meet an Advocate of his choice
during interrogation, though not throughout the interrogation.
A number of safeguards in matters of arrest of a woman have been
incorporated in the new proviso to Sec.46.
Provisions have been incorporated in Sec.54, and new Sections 55A and
60A of the CrPC Act to provide further safeguards and mandatory
provisions regarding examination of arrested persons by Medical Officers,
and taking care of their health and safety and such allied matters.
A new proviso to Sec. 157 provides important safeguards to victims of rape.
Provisions have been incorporated in Sec.161 and 164 about use of audio-
video electronic means while recording the statements of the accused.
Analogous provisions have been incorporated in the new proviso added
under Sec.275(1).
Detention of the accused in custody and his production before the Magistrate
are now regulated by new provisions and explanations inserted under
Sec.167.
Maintenance of the Case Diary by the Police Officer will now be regulated
by the new subsections 1A and 1B to Section 172.
A very important provision has been made in newly inserted sub-section 1A
of Sec.173 wherein its is provided that the investigation in relation to rape of
a child may be completed within 3 months from the date on which the
information was recorded by the Officer incharge of the police station. If the
offence relates to Sec.376, 376A, 376B, 376C and 376D of the IPC, the
police officer has also to mention in the case papers whether the report of
medical examination of the woman has been attached.
Newly inserted Sec.195A entitles a witness or any other person to file a
complaint in relation to an offence under Sec.195A of the Indian Penal
Code.
While conducting proceedings under Sec.242 of the CrPC, the Magistrate is
now required to supply in advance to the accused, the statement of witnesses
recorded by the police during investigation.
Provisions have been incorporated under Sec.309 to regulate adjournment of
proceedings on the request of either party for one reason or other.
Simultaneously a time limit of 2 months from the date of commencement of
examination of witnesses has been provided for completion of trial of
offences under Sec.376 – 376D.
Newly inserted Sec. 313(5) states that the court may take the help of
prosecutor and defense counsel in preparing relevant questions, which are to
be put to the accused and the court may permit filing of written statement
under Sec.313 by the accused as sufficient compliance of the section.
The provisions relating to compounding of offences under various sections
of the Indian Penal Code have been rationalized in the newly substituted
tables given under Sec.320.
Substituted new sub-section 3 of Sec.320 CrPC now provides that when an
offence is compoundable under this section the abetment or attempt to
commit such offence or where the accused is liable under Sec.34 or Sec.149
of IPC, may be compounded in like manner.
Relating to camera trial under Sec.327(2), a new proviso has been added to
state that Camera trial shall be conducted as far as practicable by a woman
judge or magistrate.
Criminal proceedings against persons of unsound mind and lunatics are now
regulated by amended Sec.328, 329 and newly substituted Sec.330. These
give detailed procedures and safeguard proceedings against lunatics and
persons of unsound mind.
Newly inserted section 357A incorporates a newly introduced Victim
Compenstion Scheme in order to alleviate the sufferings of the victim and to
provide important safeguards to their Right.
Amendment to Sec.372 provides that the victim shall have a Right to Appeal
against any order passed by the court acquitting the accused or convicting
for a lesser offence or imposing inadequate compensation.
New Section 437A incorporates a very important provision to provide that
before conclusion of trial or disposal of the appeal the court shall require the
accused to execute bail bonds with surety to ensure his appearance before
the higher court as and when required, and such bail bond may remain in
force for 6 months
CONCLUSION: It is there fore the concept of arrest has an important role in
the criminal justice system and it is inevitable the new changes in the concept of
arrest in view of contemporaneous societal changes which recognizes the
fundamental rights of citizens.
Bibliography
http://www.humanrightsinitiative.org/publications/police/arrest.pdf
http://legalsutra.org/law-khoj-search/